Otto Zehm

Summary

A jury convicted Spokane Police Officer Karl F. Thompson Jr. of needlessly beating Otto Zehm and then lying about it to cover up his actions. The verdict was delivered in federal court in Yakima on Wednesday, Nov. 2, 2011 – five years and seven months since Zehm’s life ended and questions of police accountability began.

On March 18, 2006, Otto Zehm was beaten, shocked and hog-tied by police officers in a north Spokane Zip Trip, after he was accused erroneously of theft. He died two days later at a Spokane hospital. Thompson was the first responding officer.

On May 21, 2012, the Spokane City Council closed one chapter of the excessive force case by finalizing the $1.67 million settlement with the family of Otto Zehm. The deal was reached in mediation between city representatives, including Mayor David Condon, and Zehm family attorneys.

Condon has issued a handwritten apology to Zehm’s mother, Anna, and recently, the Spokane Park Board placed a memorial plaque for Zehm in Mission Park. Also, the police department must provide crisis-intervention training for all Spokane police officers who aren’t scheduled to retire within a year and provide $50,000 for a consultant to help the city implement changes to its use-of-force policy.

In March 2009, the Center for Justice filed a federal civil rights suit against the city of Spokane and nine of its police officers on behalf of Zehm’s family. The lawsuit alleged that officers used excessive force and that the police department and its former acting chief, Jim Nicks, engaged in a conspiracy to portray Zehm as the aggressor.

In June 2009, a federal grand jury handed down two indictments against Thompson, accusing him of violating Zehm’s civil rights.

Documents filed in April 2010 raised serious new allegations in the case. In them, federal prosecutors suggest members of the Spokane Police Department tried to cover up their handling of the confrontation with Zehm and that the agency’s investigation clearing officers of wrongdoing was incomplete and inaccurate.

A timeline of the case shows five years of complex legal wrangling involving the criminal case against Thompson and a $2.9 million civil claim by Zehm’s mother and estate against the city of Spokane.

Recently unsealed federal court files show that the lead investigator within the police department, detective Terry Ferguson, knew that if the video of Zehm’s death became public, the results would be ‘inflammatory.’ Thompson also sent emails to police union officials requesting that they research deaths caused by a condition known as ‘excited delirium.’

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A Spokane police officer who is the target of a grand jury investigation for her role in the Otto Zehm case cried on the stand today as she alleged intimidation by federal agents.

Sandy McIntyre, who has a "father-daughter relationship" with Karl Thompson, has previously told federal investigators she though Thompson overreacted after she watched the video of the confrontation with Zehm.

But she told jurors in Thompson's excessive force case today that she doesn't actually believe that and doesn't remember saying that.

"I did not think he overreacted. I did not see the whole video and I wasn't there," McIntyre said. "It's unfair of me to say he overreacted; I wasn't there."

Federal prosecutor Victor Boutros said McIntyre talked to Thompson after watching video, but McIntyre said "I didn't speak to him about what was on the tape."

Boutros said McIntyre exclaimed out loud that there was never a lunge, which McIntyre denied.

"I would not have made a note of that," she said.

Boutros pointed out that after Acting Police Chief Jim Nicks told the department about the lunge, "You never corrected lunge lie, even though you knew it wasn't true."

McIntyre began crying when Thompson's lawyer, Carl Oreskovich, asked her whether she was scared when FBI threatened to charge her with obstruction of justice. She said it "very much" frightened her, though Boutros said the warning was a stand thing said before all interviews.

Oreskovich asked about her children, ages 19 and 14.

"My career means the world to me, just like my family does. That being said, it scared me to death," McIntyre said. "I was told 'now's the time to save yourself.'"

McIntyre said that if you look at just a portion of the video or what's on TV "Yeah it looks horrible, it looks bad" but "I wasn't there when it started." Only Thompson was, she said.

McIntyre admitted that she said "I don't recall" to grand jury questions when she actually did recall portions of it. "I did not feel like I could expand on my answers," McIntyre said.

Oreskovich emphasized to jurors that federal agents "scared the hell" out of McIntyre to get her to say certain things to the grand jury.

Spokane police Officer Tim Moses was so rattled after meeting with federal investigators about the Otto Zehm case that he feared an agent might be secretly recording him when he met with him afterward.

Moses knew an FBI agents from hostage negotiation team trainings, in which Karl Thompson also participated.

The agent heard Moses was upset about how he was treated, and the two met at a city gas fill-up area. Moses told defense lawyer Carl Oreskovich that he picked the spot because it was near railroad tracks. He wanted there to be a lot of extra noise in case he was being secretly recorded.

Moses said he doesn't want to use the word "manipulated" because he still respects law enforcement, but he feels the FBI basically forced him to say incriminating things against Thompson that weren't true, such as that Thompson claimed Zehm lunged at him.

"I trusted the FBI to tell me the truth. I didn't know any better." Moses said.

Moses and federal prosecutor Victor Boutros sparred this morning as Moses criticized Boutros for only showing clips of the surveillance video instead of the entire thing.

Moses said he never talked to Thompson about what happened until after Zehm was en route to the hospital, which contradicts testimony from EMTs that Moses said Zehm had been hit in the head and neck with a police baton.

Boutros asked Moses about an alleged statement he made to a witness - that Zehm had gotten the "tar" beat out of him - prompting a swift objection from Oreskovich.

Jurors were instructed to disregard the statement.

Moses said he was taken aback by how the FBI threatened him with obstuction of justice chargs.

"I thought we were all professional law enforcement," Moses said.

Oreskovich ended his questioning with this exchange: "You knew if you were charged with obstruction of justice you wouldn't work in law enforcement again would you?"

Moses replied yes.

"I was raised in a law enforcement family. I know exactly what obstruction of justice means," Moses said.

Condon, the former district director for Republican U.S. Rep. Cathy McMorris Rodgers, has been working to distance himself from the Republican label, though McMorris Rodgers recently headlined a fundraiser for his campaign.

Meanwhile, Verner's campaign has a released a statement from the current chairman of the Spokane County Democratic Party, David Smith. He addresses the Otto Zehm matter, which is the issue that Keefe said pursuaded him to back Condon.

"Mary Verner was not mayor when Otto Zehm died. She was sworn into office a full eighteen months after his death. She could have chosen to augment her political capital by joining in the public condemnation of Officer Thompson," Smith said. " Instead, despite her professed grief for the family of Otto Zehm, she chose to accept the political risk inherent in standing up for Officer Thompson’s right to a fair trial. Doing so took courage. Standing up for the constitution always does."

A doctor who testified in the Rodney King police brutality case in 1992 told jurors the Karl Thompson excessive force trial Thursday that the case are comparable.

"The Rodney King case had similar elements to the case at hand," said Dr. Harry Lincoln Smith. He said medical evidence clearly shows Otto Zehm was beaten over the head with a baton. Read more from Tom Clouse here.

Smith's testimony began a packed day that ended with contentious testimony from Officer Tim Moses (pictured), who contradicted testimony given to a grand jury in 2009.

It was Moses, prosecutors say, who first revealed to EMTs that Zehm had been hit in the head with a baton.

But Moses said Thursday he doesn't recall his conversations with EMTs that night.

"I frankly don't remember what he asked me…it was 5 1/2 years ago. I wish I could tell ya," he said.

But Moses told a grand jury about strikes to the head, neck and torso. He also said he'd heard Thompson say Zehm lunged at him.

Federal prosecutor Victor Boutros asked Moses if he swore to tell the truth to the grand jury.

"What I knew it to be at the time, yes," Moses replied. "…I don't lie, no."

Moses testified Thursday that he hadn't even been briefed by Thompson before Zehm left an ambulance.

Boutros asked Moses about a private "venting session" Thompson had with him outside the Zip Trip has Thompson was calming down. Moses said Thompson simply pointed out where his police car had been positioned. He said Thompson described baton strikes, but said he didn't hear anything about strikes to the head or neck.

Moses said video that prosecutors say shows him describing the baton strikes to two EMTs does not show that.

"I was not describing baton strikes right there," Moses said.

Moses also said Thompson never used the words "lunge" or "lunged," which contradicts what he told a grand jury.

"He did not use the word lunge, no. I'm the one who coined that word," Moses said of Thompson. Moses then told Acting Police Chief Jim Nicks, who "went right across the parking lot and put it into a news media microphone."

Moses said he was threatened by the FBI with obstruction of justice charges if he said he did not remember facts, which led to his erroneous grand jury testimony.

"I was shocked that a fellow law enforcement officer would treat me that way," Moses said.

"My family's FBI. I've been a cop my whole life," Moses said. He said he thought they were going to tell truth, but they manipulated him.

Boutros emphasized that Moses is a 22-year officer who thinks he was influenced by FBI to make statements that weren't true. Moses agreed.

A Spokane convenience store who knew Otto Zehm as a regular customer since 2002 told jurors today that Zehm frequently bought 2-liter bottles of Pepsi at the Zip Trip at 10th and Maple.

Zeth Mayfield has worked at all Zip Trips in Spokane, he told jurors, though he never saw Zehm in the Zip Trip on North Division where Officer Karl Thompson confronted him.

Outside the presence of the jury, defense lawyer Carl Oreskovich tried to exclude Mayfield's testimony, telling Judge Van Sickle it was irrelevant to the point of the case, which is whether Thompson used too much force.

All Mayfield's testimony does, Oreskovich said, is establish that Zehm was a regular customer "which is not at all what was known to Officer Thompson."

Assistant U.S. Attorney Aine Ahmed said Mayfield was needed to help show that Zehm wasn't using the soda bottle as a weapon - that he regularly bought soda at Zip Trip.

"No one can speak for Mr. Zehm right now," Ahmed said. "I can't prove anything about his innocence.." so he must look at intent.

Ahmed said were Zehm still alive, he surely would be allowed to testily that he didn't use the bottle as a weapon and that he always bought that kind of soda. He said Mayfield could show that Zehm "never acted aggressively" when he was in the store.

Ahmed said Zehm introduced himself when Mayfield began working at the store in 2002 and said "welcome to Zip Trip." He said Zehm once found two $5 bills in the store, turned them in, then refused to keep one when the customer came back before them.

Mayfield didn't get into that with jurors, but he did say that he saw Zehm in Zip Trips more than 50 times.

Mayfield said Zehm bought "sodas, snacks, anything that he needed for groceries. Milk, egg," and went in just about every other day.

On cross examination, Oreskovich noted that Mayfield had not contacted Zehm in the months prior to the confrontation, and had not seen him the day of March 18, 2006.

Spokane police Officer Tim Moses may contradict testimony he gave to a grand jury in 2009 if he testifies as a prosecution witness in the federal trial of Officer Karl Thompson, according to court documents filed this week.

U.S. District Judge Fred Van Sickle issued an order today that requires Moses to testify. His lawyer, Chris Bugbee, has said he expects Moses to be offered immunity.

Bugbee told prosecutors that Moses' testimony "may be inconsistent with sworn testimony that he previously provided in front of the Grand Jury, in and for the Eastern District of Washington on June 16, 2009."

Prosecutors say Moses changed his statement about Thompson hitting Zehm in the head with a baton after talking to Thompson "and having later met with Defendant's counsel while then unrepresented by Mr. Bugbee."

Moses is one of 22 witnesses prosecutors sought to declare as hostile, which allows them more freedom in questioning. Hostile witnesses can be asked leading questions.

In a document explaining the need for the designation, prosecutors described the deep support Thompson has in the Spokane Police Department.

"Many local law enforcement officers and others have come to the defense of Defendant Thompson as they see this prosecution as an unwarranted attack on one of their own and on the Spokane Police Department that employs Defendant," according to a document filed Tuesday.

Another EMT who responded to the Zip Trip the night of Otto Zehm's fatal confrontation with Officer Karl Thompson told jurors this morning that Officer Tim Moses said Zehm had been struck in the head, neck and upper chest with a police baton.

"We needed to know what happened…how he was injured" beyond just the "confrontation" explanation, Jaramillo said. That's when they spoke with Moses, who said Zehm had been hit "up and down" in the head, neck and upper torso with a baton, Jarmillo said.

Federal prosecutor Victor Boutros showed Jaramillo images of the Zip Trip after the confrontation.
Jaramillo identified himself and Stussi as talking to Moses. Moses is seen gesturing up and down with his arm - Jaramillo said he was "trying to describe" how Zehm was hit.

Jaramillo said Moses was the only one who spoke of head strikes that night.

Jaramillo and Stussi wrote in a pre-hospital care report that Zehm was struck in the head. Spokane police employees were present when it was written; none disputed the head strikes claim, Jaramillo told jurors.

But Jaramillo wasn't so sure when he first testified before a grand jury in 2009. Boutros questioned him about getting only one hour of sleep because of a newborn baby and flying to Spokane from Florida. He was much more alert for his testimony the next day.

Defense lawyer Steve Lamberson said Jaramillo has previously said that Moses never mentioned a head strike, rather Jaramillo assumed he was referring to one by the way he was gesturing.

"No, he said head, neck and upper chest," Jaramillo said.

Lamberson also pointed out that in the first day of testimony before the grand jury, Jaramillo said "right now, I don't remember" when asked if Zehm lunged at Thompson.

He also noted that both Stussi and Jaramillo evaluated Zehm for head injuries but found nothing. Also, a doctor's report said nothing about head injuries or strikes.

Boutros then emphasized bruising takes time to develop, and that Jaramillo noted in his initial report that Zehm was struck in the head with a baton.

Jaramillo was told that Zehm threw bottle at Thompson, was Tasered but not affected, then lunged at Thompson.

A paramedic who wrote a report describing baton blows to Otto Zehm's head by police testified today that he heard about the head strikes from Spokane police Officer Tim Moses.

It was through Michael Stussi's report, prosecutors said in opening statements last week, that the "secret truth" about the level of response Officer Karl Thompson used on Zehm was revealed.

Stussi told jurors today that Moses (pictured left) was the only person who could have provided him the information the night of March 18, 2006. The report states that Zehm became "combative" and was hit in the "upper torso, neck and head" "by a nightstick per SPD."

Prosecutors introduced scenes of the Zip Trip that night that showed Stussi talking to Moses. Moses is seen moving his arm up and down, which Stussi mimics, indicating that may have been when Moses described the head blows.

On cross examination, defense lawyer Steve Lamberson pointed out that Stussi originally told federal investigators in 2009 that it was an officer or firefighter who told hm about the head strikes.

Stussi said he originally couldn't remember, but that he reviewed the video and realized Moses was the only one who could have told him about the head strikes.

"I don't recall talking to anyone else" other than Moses, Stussi said. That includes Thompson.

Moses is expected to testify Thursday in Yakima, with a live feed of the trial available at the federal courthouse in Spokane.

Also expected to testify is Officer Erin Raleigh, who also responded to the Zip Trip the night of the fatal confrontation.

Outside the presence of jurors, prosecutors discussed wanting Moses and Raleigh designated as hostile witnesses so they can be asked leading questions.

Defense lawyer Carl Oreskovich questioned why Raleigh (pictured right) needed that designation. Prosecutors say he has alleged coercion by federal agents and is a major supporter of Thompson.

Chris Bugbee, lawyer for both officers, said Wednesday evening that he hadn't heard of the possible designation but doesn't feel it's necessary. Moses had not yet received a letter promising him immunity from prosecution if he testifies, but "I presume he will," Bugbee said.

Bugbee said the immunity regards "not much, just anything that he may testify to on the stand."

"I'm sure Mr. Oreskovich will bring out the full breadth of what it entails," Bugbee said.

A Spokane couple who was in the Zip Trip parking lot the night of the fatal confrontation between Otto Zehm and Spokane police Officer Karl Thompson testified today that Zehm never lunged or attacked Thompson with a pop bottle.

Russell Balow said Thompson stopped "very briefly" for a second or two when he was about eight feet away from Zehm. He saw his mouth move just before Thompson struck Zehm twice with his baton.

"He seemed suprised" by the baton strikes, Balow said of Zehm.

Oreskovich asked Balow if he saw a baton strike that “grazed his head or face first before it struck his shoulder,” to which Balow said yes.

“All you are saying is what appeared to you some 60 feet away watching an officer swing a baton?” Oreskovich asked. Balow again said yes.

Assistant Spokane Police Chief Jim Nicks told jurors in Officer Karl Thompson's excessive force trial this morning that Thompson approached him a year ago and told him he'd tried to take back his initial statement about Otto Zehm lunging at him.

At the request of federal prosecutors, Nicks also read to jurors an email sent to police employees the night of Thompson's fatal confrontation with Zehm on March 18, 2006.

Written by Tom Lee, SPD public information officer at the time, the email doesn't name Thompson but said an officer responding to a report of a suspicious person encountered a "large and strong" man who "immediately lunged" at him.

The man was controlled after several minutes of "hand to hand combat," according to the email, but stopped breathing without warning after medics responded.

Assistant U.S. Attorney Tim Durkin asked Nicks, wearing a dark suit instead of a police uniform, if the information in the email was consistent with what he heard when he talked to police at the Zip Trip.

"Yes, that's very accurate," Nicks responded.

Nicks then told jurors that, about a year ago, Thompson approached him at the Public Safety Building and told him he'd corrected him about the lunge statement, which Nicks disputes.

"That would have been very memorable, and I don't have any memory of such a conversation," Nicks told jurors.

Prosecutors ended questioning by asking Nicks if anyone ever corrected him about the claim that Zehm lunged at Thompson.

A retired Spokane police corporal who was on scene after Karl Thompson confronted Otto Zehm was declared an adverse witness Tuesday as prosecutors described his friendship with Thompson.

That designation allowed prosecutors to ask retired Cpl. Ty R. Johnson leading questions during his testimony Tuesday afternoon in U.S. District Court in Yakima.

When asked if Thompson was a friend, Johnson (pictured left) said "I would hope so." He said they worked patrol together, and Thompson goes to Christmas parties at his home and also just to visit.

Johnson also said yes when asked if he'd rather not be testifying in the government's case.

Johnson said he was at the Zip Trip after the confrontation to photograph evidence in a possible case of felony assault by Zehm against Thompson and Officer Steve Braun, the second officer on scene.

Defense lawyer Carl Oreskovich emphasized in cross examination that Johnson's duty wasn't to get the whole story from Thompson.

Oreskovich introduced Johnson's evidence photos to jurors, including a close-up picture of Thompson that showed red marks on his cheeks. Oreskovich pointed out each one.

On re-direct questioning from prosecution, Johnson was asked about the claim that Zehm lunged at Thompson. "I'm asking whether he told you that night that Mr. Zehm had assaulted him?" the prosecutor asked.

"I guess, I would assume," Johnson said, adding that Sgt. Dan Torok was also on scene and the decision had been made to investigate a possible assault by Zehm, so the statement had to have been made at some point.

"I have idea where it came from. I never used it and it's never been used to me," Johnson says of Zehm's alleged lunge.

Johnson said he never used the word lunged.

"I have no idea who initiated it," Johnson said.

Johnson retired from the Spokane Police Department in July after 25 years. His testimony previewed what's expected to be a big day of testimony today from Spokane Police Department employees, including Assistant Chief Jim Nicks (pictured right).

An expert on human behavior and reaction time testified today that Otto Zehm had no opportunity to see Spokane police Officer Karl Thompson until he was about 10 to 12 feet away.

By then, Thompson had already pulled his baton, said Dr. Richard Gill. "His speed was 7.5 feet per second. Three times the speed that Zehm was traveling at," Gill said.

Gill went through surveillance of the video frame by frame for jurors in the trial's fourth day of testimony.

He said Zehm entered the store at a casual pace of 2.5 feet per second - the average walking speed is 3.5 feet - and has his back toward Thompson as he approaches the aisle, where he grabbed a 2-liter plastic bottle of diet Pepsi.

"Watch his hair and his head and you'll see at no point is he looking back at the direction Thompson is coming," Gill said.

Gill said Zehm "maintained a slow, calm walking speed" inside and outside store, bypassed two exits once inside and didn't attract attention when he entered like Thompson (pictured right) did.

Thompson said he ordered Zehm to drop it after stopping and making eye contact. But Gill says video shows Thompson continuously moving.

"Notice Thompson never stops moving," Gill said. "…There's never a time that he stops."

Gill said the first baton strike was delivered after about 2.4 seconds.

"In my opinion there is not sufficient time for that verbal exchange to occur," Gill said.

Gill told jurors he believes Thompson's hand somewhere within a specific video frame not because he definitely sees it, but because of how the hand is positioned in the frames before and after.

Defense lawyers have said that it was really a car headlight, but Gill said he considered the passing headlight when analyzing the video.

In cross examination, Carl Oreskovich (pictured left in a file photo) emphasized that the video doesn't show Officer Steve Braun's deployment of a Taser. Gill said Thompson was "very clearly" seen using a Taser.

"What we don't see is what Otto Zehm is doing, correct?" Oreskovich said.

"The only thing that we can conclude from that is Mr. Otto Zehm is not standing up with his head over the shelving," Oreskovich said. "You don't know whether he's in crouch manner under the shelves."

Gill acknowledged so.

Oreskovich replayed video frames of Zehm walking in to try to show jurors that Zehm could have seen Thompson coming. Oreskovich also said the video shows Zehm's feet moving and Thompson moving away, but

Gill said Thompson didn't appear to be moving back because of a kick.

Gill said Zehm's fists can be seen in the air in two frames.

Oreskovich: "What we see is a free left fist no longer being held by Officer Thompson."

Jurors in the federal trial of Spokane police Officer Karl Thompson were instructed this morning to disregard any reference to Otto Zehm as a "robbery suspect."

The move by U.S. District Court Judge Fred Van Sickle came after prosecutors argued the door had opened for them to tell jurors that Zehm was innocent of the theft that brought Thompson to the fatal confrontation at a Zip Trip in Spokane on March 18, 2006, because store clerk Leroy Colvin had referred to Zehm as a robbery suspect.

Van Sickle also barred defense lawyers from asking any non-expert witnesses about a possible robbery.

The issue of whether jurors can know of Zehm's innocence was hotly debated in pre-trial motions that delayed the trial last year as federal prosecutors appealed to the 9th Circuit Van Sickle's ruling barring any mention of it.

The 9th Circuit sided with Van Sickle, who later rejected an attempt by prosecutors to split the trial to allow mention of Zehm's innocence when arguing that Thompson lied to investigators.

YAKIMA - Had the fatal confrontation with Otto Zehm been a mock scenario used in training, Spokane Police Officer Karl F. Thompson Jr. would have flunked, a use-of-force expert testified on Monday.

Robert Bragg, who directs use-of-force training for all police recruits at Washington’s police academy, said Thompson violated his training and had no reason to immediately begin striking Otto Zehm with a baton on March 18, 2006.

Lots of Spokane Police Department employees are expected to testify at the trial today.

While Clouse is staffing in Yakima, I will be in court here in Spokane starting at 9 a.m. using my Twitter account to follow the live feed of the trial. Check out my page here for minute-by-minute play-by-play from the courtroom.

As the excessive force trial of Officer Karl Thompson enters its second week, many Spokane police officers have made his badge number their personal Facebook profile pictures as a show of support.

Thompson is a mentor to many in the department and was drafted to run for police chief before Anne Kirkpatrick was appointed in 2006.

His indictment on federal charges of lying to investigators and violating Otto Zehm's civil rights during the 2006 confrontation that led to Zehm's death has drawn the ire of many in the department, who have joined a Facebook group that says Thompson is "a media scapegoat, wrongly accused, and wrongly charged."

Several Spokane police employees are expected to be called as witnesses for the prosecution, including use-of-force expert Rob Boothe, who is a member of the support group.

Spokane resident Britni Brashers was 13 in March 2006 when she and her younger sister went to a Spokane convenience stores to buy a few things. She ended up being a witness to one of most controversial police encounters in city history.

"He walked in and stared looking at the items like any other person," Brashers told jurors of Otto Zehm, who lost consciousness at the store during an encounter with police officer Karl Thompson. He died two days later.
Thompson arrived soon after Zehm, moving "very quickly, very frantically," Brashers said.

"He just approached him without saying anything and just swung back and hit him," Brashers said.

Zehm, she said, "was just screaming in agony…just moaning and groaning in pain."

Brashers saw him holding pop bottle on ground while he was laying with stomach down but said she never saw him threaten police with it. Nor did Zehm ever take a "boxing stance" or get off the ground after the first Taser shock, Brashers told jurors.

Defense lawyer Stephen Lamberson used a mini replica of the Zip Trip store to imply that Brashers had a limited view of the encounter.

He asked Brashers why other witnesses reported hearing verbal commands when she said she heard none.

"It kind of surprises me," Brashers said of the other witness claims. "Because i didn't hear anything and I was paying good attention to it."

Lamberson asked: "But you don't know where those baton strikes landed?" to which Brashers responded: "I know it was in the upper body

Lamberson emphasized that the sounds Brashers heard Zehm make may have been out of anger and resistance, not pain. He said Brashers statements changed to emphasize the pain aspect of the sound once she talked to the FBI, and that she first told investigators that Zehm was "fighting" with police.

Brashers said she was never told what to say by federal investigators - only that she should tell the truth.

After the encounter, Brashers appeared on a local TV news station after hearing police claim that Zehm had lunged at police.

"When I watched the news that night it was different from what I saw, so I had my mom call and I told them that wasn't what I'd seen," Brashers said.

After the encounter that led to Otto Zehm's death, Spokane police Officer Karl Thompson told an investigator he didn't feel deadly force was needed against the suspect.

In a recorded interview with now-retired Spokane police Detective Terry Ferguson that was played for jurors today, Thompson said his first intent to was strike Zehm in the leg his baton "to be able to buckle his leg and put him on the ground."

"I had deadly force available but i did not perceive this as a deadly threat," Thompson said, adding that he wanted to continue issuing verbal commands.

But, as prosecutors have told jurors, Thompson repeatedly struck Zehm in the head with a baton, which is considered deadly force.

The recording outlines what prosecutors have said was nothing but a lie from Thompson — that Zehm lunged at him and fought with him using a plastic soda bottle.

In the interview with Ferguson, Thompson, who is now on trial in Yakima for allegedly violating Zehm's civil rights and lying to investigators, said Zehm posed a physical threat.

"His whole body suggested that it was tense and prepared to respond either by pushing, throwing or charging me," Thompson said.

Thompson said Zehm was screaming and groaning like someone with "a high level of commitment to resisting or attacking."

He said Zehm took a "boxing stance" and threw punches, so Thompson hit anywhere he could with the baton, except the head. Thompson claimed Zehm stood up after being shocked with a Taser, which surveillance video disputes.

Thompson said he was finally able to use his radio and knew Spokane police Officer Steve Braun was close by. But Zehm was still kicking, Thompson said. So when Braun arrived "I told him, 'use your baton. Start hitting him.'"

Braun shocked Zehm with a Taser, but it had no effect, so Thompson directed his fellow officer to deploy the Taser on Zehm's neck.

Thompson looked around the store for his baton before realizing it was on his holster, he said in the recording. He said Zehm was still "resisting extremely forcefully" as police responded. Soon, he heard an officer say, "He's not breathing."

Thompson again told Ferguson that he had no reason to shoot Zehm.

"Had he tried to get my gun that clearly would have been a a deadly force issue to me…but he did not," Thompson said. Thompson said it was important to detain Zehm for questioning.

"We had at the very least a felony of assault on an officer," Thompson said.

Spokane police Officer Tim Moses may invoke his Fifth Amendment right against self-incrimination if he's subpoened to testify in the excessive force trial of Officer Karl Thompson, who is charged in connection with the death of Otto Zehm.

Federal prosecutor Victor Boutros told U.S. District Judge Fred Van Sickle before opening statements today that Moses may use the 5th Amendment protection in refusing to answer some questions. Van Sickle said they'll deal with how to present him as a witness when he's called to testify later in the trial.

Boutros soon introduced Moses (pictured) to jurors in his opening statement. It was Moses, he said, who heard the "secret truth" from Thompson outside the Zip Trip that night: that, despite what he'd said in his initial statement, he had struck Zehm in the head and neck with his baton.

"What the defendant didn't know is that a series of events had taken place that would unravel the 'no strikes' lie," Boutros said.

Thompson didn't think it would ever come out, Boutros told jurors, but it did - in a report sent with EMTs who rushed Zehm, already unconscious, to a hospital, where he died two days later.

It was what ultimately revealed to federal investigators Thompson's "web of lies," Boutros said. (That report never made it to county prosecutors, who ruled Thompson's use of force justified, but an autopsy also showed evidence of baton strikes to Zehm's head.)

Jurors weren't told of Moses' possible intentions to plead the fifth.

Boutros' description of the "secret truth" came in an opening statement that kicked off what's expected to be a five-week trial.

Boutros began by telling jurors: "This is a case about a police officer who chose to strike first and ask questions later."

He continued by describing Zehm as a man who always went to the Zip Trip to simply get a bottle of soda, prompting a swift objection from defense lawyer Carl Oreskovich, who said the statement violated a ruling that barred mention of the fact that Zehm was innocent of the alleged theft that prompted the police call.

Boutros told jurors that Thompson continued "to disgrace the badge" by lying about what happened. He said Thompson is not charged with causing Zehm's death, but that when he "brutally beat" him he broke the law.

Boutros said the suspicious circumstance call regarding Zehm was a "very common, low-priority type call that rarely results in arrest" and there was no reason for Thompson to believe Zehm posed a threat.

"Even the defendant admitted that, based on the call, he didn't have any reason to believe that the man at the ATM had committed any crime," Boutros said. Boutros told jurors that a 7-year-old girl covers her ears as Zehm scream in pain from a Taser shock. Five years later, witnesses, including the girl who made the 911 call about Zehm, are haunted by police beating hm like that and will testify, Boutros said.

After the encounter, Thompson crafted a lie about Zehm lunging at him, and, at the end of the night "the defendant's lie about the lunge was in an email circulated to everyone" in the Spokane Police Department, Boutros said. Soon, Acting Police Chief Jim Nicks was on scene "unwittingly spreading the defendant's lies to the public."

She viewed the surveillance video and exclaimed out loud that Zehm never lunged, Boutros told jurors. She conferenced with Thompson outside, who Boutros said had four additional days to craft a new story for his official interview. He was even given a practice interview.

Opening statements in the trial of Spokane police Officer Karl Thompson, charged in connection with the death of Otto Zehm, are to begin at 9 a.m. today in Yakima.

Reporter Tom Clouse will be providing daily coverage from the courthouse in The Spokesman-Review and at our website. Here's his story on the jury pool, which is comprised of eight men and four women.

A screen shot of surveillance video from the altercation at Zip Trip is pictured.

Those looking to follow along with opening statements can check out my Twitter page here. I will be providing minute-by-minute updates from the live feed of the trial at the federal courthouse in Spokane. You can sign up for Twitter and follow me, or you can simply check my page whenever you're looking for an update. Text message updates are available.

The verdict is in. Anyone desiring to watch the upcoming federal trial of Karl Thompson Jr. – the Spokane cop whose deadly encounter with Otto Zehm earned him an excessive force charge – must fill up the tank and travel 200 miles to Yakima. Apparently we wags of the local media are to blame for potentially tainting the jury pool with our blather. Yakima? I can’t recall the last time I was in Yakima, but I think it had something to do with mad cow disease. There’s no use whining. U.S. District Court Judge Fred Van Sickle has made up his mind, sort of. The judge, according to our news account, conceded he wasn’t convinced that Zehm-related coverage by local media created “actual” or “perceived” bias against Thompson. Not about to be swayed by the soundness of his logic, however, the judge moved the trial anyway/Doug Clark, SR. More here.

Question: Come to think of it, I've never been to Yakima, Wash. Have you? Good experience?